TMI Blog1981 (10) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is a deductible item under s. 5(j) of the Agrl. I.T. Act. In view of the fact that the question whether the AAC is an authority subordinate to the Commissioner is a common question in both the writ petitions, they were heard together and are being disposed of by this common judgment. It is not necessary to state in detail the facts of the case as there appears to be no serious dispute on the question of facts. In both the cases, aggrieved by the decision of the Agrl. ITO, the respective petitioner had taken up the matter in appeal. Not being satisfied with the decision of the AAC, the petitioners filed revisions under s. 34 of the Agrl. I.T. Act before the Commissioner. The Commissioner took the view that the AAC who decided the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der s. 31 of the Act,, an appeal to the AAC is provided if any assessee objects to the amount of income assessed or tax determined or loss computed under s. 18 or denied his liability to be assessed under the Act or objects to any order under any of the provisions of ss. 19, 20, 21, 25, 29 and 41 made by the Agrl. ITO. Under s. 32, a second appeal against the orders of AAC is provided if any assessee objects to an order passed by an Agricultural Assistant Commissioner under s. 20 or s. 31 to the Appellate Tribunal. Sub-section (2) of s. 32 provides as follows : " (2) The Commissioner may, if he objects to any order, passed by an Assistant Commissioner under section 3 1, direct the Agricultural Income-tax Officer to appeal to the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Commissioner purported to be in exercise of his jurisdiction under s. 34 of the Agrl. I.T. Act. The Division Benches found that the exercise of power by the Commissioner was opposed to the principles of natural justice inasmuch as, by virtue of the provisions contained in s. 32(2) of the Act, it was he himself who was to direct the Agrl. ITO to file a second appeal before the Appellate Tribunal. It may incidentally be noticed that in neither of these cases it was held that the AAC was not an authority subordinate to the Commissioner. As far as the decision in the other case, namely, Paramu v. STO [1967] 19 STC 138 (Ker), the challenge raised by the assessee was against the order passed by the Deputy Commissioner of Sales Tax und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala General Sales Tax Act, 1963, on 1st April, 1963, the Deputy Commissioner has no power to revise an order passed in appeal by the Appellate Assistant Commissioner. This decision rendered on a construction of the provisions contained in s. 35(1) of the Sales Tax Act, as it then stood, cannot be of any assistance to the Revenue to support its contention that the AAC is not subordinate to the Commissioner. It may incidentally be also noticed that subsequent to the decision in Paramu's case [1967] 19 STC 138 (Ker), the section has undergone an amendment by expressly excluding the AAC from the purview of any officer or authority subordinate to the Deputy Commissioner for the purpose of s. 35 of the Act. It has to be borne in mind that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sincere conviction as to public policy might operate as a more serious disqualification than pecuniary interest, and the Legislature must guard against " departmental bias". Probably, S. 32(2) had been framed in partial recognition of the rule that minds biased must not decide; that is why the Legislature in its wisdom thought that the objections of the Commissioner against the orders of the AAC should be justiciable by an independent authority, namely, the Appellate Tribunal. In that context, the jurisdiction under S. 34 becomes exercisable only in cases where the Commissioner had not already formed an objection in favour of the department, which he was desirous of adjudicating. The fact that the power under s. 34 is subject to the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit... " Explanation 2 to that section states that for the purpose of this section, the AAC shall be deemed to be an authority subordinate to the Commissioner. To remove doubts it would have been advantageous if the Legislature incorporates a provision in S. 34 of the Agrl. I.T. Act, also similar to Explanation 2 to S. 264 of the I.T. Act, 1961. Even in the absence of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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